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June 13, 2008

Comments

How would you respond to Charley's statement that "the majority deciding an issue that was before the court below, but not ruled on by it" happens all the time, including in an opinion that Roberts wrote, issued the very same day as Boumedienne, & that objections to that are "meaningless pearl clutching."?

And I'd be interested in your opinion why Judge Rogers addressing the issue in her dissent doesn't bring the Court's decision fully within standard appellate practice. See http://pacer.cadc.uscourts.gov/docs/common/opinions/200702/05-5062b.pdf>opinion (pdf).

Ok first, i agree with reaching it. Second, I agree with reaching the issue.

But as a matter of procedure, I'm not crazy about the Court deciding constitutional issues that haven't been explored below. That doesn't work out so well here, but it's still a good ex ante rule (particularly if McCain wins -- realism was a left-wing argument before it was a right-wing argument and it may become necessary again).

As for the question, yes, of course it happens - but it's still not the recommended procedure. Also, it's not clear that it was properly briefed below (as a purely technical matter). The cases before the Court are habeas cases. The CSRT process hasn't been reviewed (particularly under the proper assumptions).

All that said, I still think it's right to go ahead and reach it for the reasons I've outlined. I think that's what the court did (positively) and I think it was (normatively). I think real-world considerations can and should play a role here.

Kicking it back just allows this kangaroo process to go on (not to mention the evasions).

I understand that we're ending up in the same place. I do not agree that the right-wing talking point that Justice Kennedy did something unlawful or even out of the ordianry ought to be dignified with conditional agreement. Of course the majority could have sent it back for the issue. They didn't have to do so, and their decision not to do so should form the basis of an attack on the legitimacy of the decision.

Also, I think the sheer outrageousness of the CSRTs is so bad that it provides further justification for throwing them out even before the DC Circuit takes a crack at them.

But one other point that bears mention -- it's important to distinguish b/w procedure and substance. Under your view, teh DC Circuit was substantively wrong. But, that doesn't necessarily mean the PROCEDURE is unduly narrow. The procedure itself seems to allow the DC Circuit to do anything it wants. Now it may get it right or (more likely) it may get it wrong -- but that doesn't mean the procedure itself is flawed.

Gutting the procedure required looking at the real-world effects (i.e, that the DC Circuit either got it wrong or would get it wrong)

Also, it's not clear that it was properly briefed below (as a purely technical matter).

My advice is to stop digging.

CC -- I'm not saying it's illegitimate -- I'm saying (or i hope to say in an upcoming post) that it's legitimate AND lawful to incorporate this stuff into the analysis.

I'm going to try to write a Legal Realism 2.0 post making these points.

"The procedure itself seems to allow the DC Circuit to do anything it wants. "

Not according to binding D.C. Circuit decisions, nor according to the gov't during briefing in this case, as Justice Kennedy discussed.

To this non-lawyer, publius seems to have the best of this argument, particularly if the Supreme Court threw out the reason that the DC Circuit declared that the detainees didn't have constitutional rights.

Looking forward to the next post. You might incorporate the notion that in granting cert in Boumediene, the Court asked that the parties present supplemental briefing if any decisions issued in Bismullah. http://www.supremecourtus.gov/qp/06-01195qp.pdf>Order (pdf).

Thanks for all the comments by the house lawyers. It helps a layperson like myself understand the bigger picture as well as the finer details.

OCSteve: you're a better not-a-lawyer than I, because frankly I'm finding it all clear as mud.

I really don't understand how so many lawyers can (apparently) disagree about something that to me seems as foundational to our legal system as habeas corpus. I guess I expect all lawyers in this system to be at least *trying* to play the same game, Rule of Law. How can this be a 5-4 decision? Are some of the Supremes griefers in the law game, or do they think of law as a different sort of game?

Dr. Science: This is free ice cream. I would expect to pay money for this kind of analysis. Here I get it for free, with sprinkles…

Breaking SCOTUS decision – where else am I going to go?

yeah, I'm one of those people who doesn't *like* Rocky Road.

Dr. Science: At one level, Boumediene is a very hard case, as witnessed by the posts and commentary on this blog.

On another level it's very easy: Can the Executive, with the assistance of Congress, create a legal hole -- a place on the planet where there is no judicial review of American actions, no matter how atrocious the conduct of the kangaroo courts there?

5 judges said yes -- the Great Writ of habeas corpus applies everywhere the American Executive deprives people of their freedom.

4 judges said no -- the Court should defer to the judgment of the Executive in how to wage this war.

Much like the problems in defining the scope of "liberty" and "due process", there's no roadmap in the Constitution to guide justices in determining the scope of the great writ. So judges use precedent and judicial temperment to reach their answers.

Doctor Science: there are, oddly enough, a couple of questions that are non-straightforward. One is the one publius, Katherine, ChrleyCarp, et al have been going at it about: is there a case to be made that this case should have been punted to a lower court? -- I mean, generally, the Court does not get to decide whatever it wants to; the Justices can't just wake up one fine morning and decide to opine on the adequacy of the nation's food recall laws, or whatever. cases have to arrive at the court in a particular way, and there's a question whether this one did.

The second is the question whether habeas rights extend to Guantanamo. Being wonky, several months ago I read an amicus brief by a scholar of the history of the British common law, for this case. It was all about various early British decisions that might or might not be apposite.

So: habeas was (iirc) extended to people in parts of India which were then under Mughal control. I can't recall whether it was extended to the Channel Islands, which for some reason or another had an anomalous legal status. I believe it was extended to slaves brought into the UK. And for each of these, the scholar asked: is this in some way analogous to Guantanamo? Does it bear on the case at hand?

If it does, it's via the question I mentioned in my post, namely: what is "the" Privilege of Habeas Corpus? Clearly, citizens have it when they are detained by the government in the US (clearly to me, apparently not to John Yoo and John Ashcroft...) But how far does it extend?

You can give a number of colorable answers to this question, based on what you think the earlier cases show, not to mention the various US precedents. (When people talk here about "The Insular Cases" -- 'insular' as in 'islands', and more specifically islands annexed at various times by the US. Unlike, say, the Louisiana Purchase, it wasn't clear that we were ever going to admit, say, Guam or the Marianas (or the Philippines) to statehood. What was their legal status? Did the whole Constitution apply there?

Imagine the proliferation of details. That's all I've been able to bring myself to do. I haven't so much as attempted it. But they are all potentially relevant. Oh joy.

Please add, somewhere in the sentence beginning "When people talk here about "The Insular Cases"", a phrase like: what they are referring to is...

Darn grammar. ;)

And, to combine my answer with the original Francis':

I spelled out points where complexity could creep in. One might have decided the case on some such basis. It was in fact decided the way T.O.Francis says. I think it was decided correctly.

But to get to that decision, you have to basically say: wait, this is not a good time to go sifting through the details of the insular cases and the common law precedents. This raises a fundamental Constitutional question, namely: can the Executive just set up a legal black hole?

And nothing really requires that the justices go there. Or rather: respect for the rule of law and Constitutional government do, but prior precedents do not.

Or rather: respect for the rule of law and Constitutional government do, but prior precedents do not.

This is kind of my point. I thought "respect for the rule of law" was a *premise*, a thing to which all lawyers agreed, and that they would abhor legal black holes just as nature abhors a vacuum.

At one level, Boumediene is a very hard case, as witnessed by the posts and commentary on this blog

Honestly, I see no particular correlation between "level of blogosphere heat generated" and "hardness of legal cases". Heat level seems to correlate *only* with emotion, and while there's clearly a lot of emotion on this issue I don't see where half of it is even coming from -- the half (or 4/9ths) where lawyers are arguing *against* the rule of law.

" I mean, generally, the Court does not get to decide whatever it wants to; the Justices can't just wake up one fine morning and decide to opine on the adequacy of the nation's food recall laws, or whatever. cases have to arrive at the court in a particular way, and there's a question whether this one did."

There is not really any question about that. They were fully within their power to decide these issues; they granted cert. on these issues; you can argue for prudential reasons they should have punted one specific, limited issue back to the Circuit.

A lot of people seem pretty heavily invested in a Dred Scott sensibility with respect to these men: they had no rights the white man is bound to honor. It's a tribal conception of our country that I don't share, I guess.

I must say that, as a general proposition, find several of the dissenting justices deeply dishonest, as well. I don't know enough about Alito, but Scalia has had ample opportunity to show himself an results-oriented unprincipled hack, and I'm way less impressed with Roberts here than some others seem to be.

I honestly believe that if Scalia and Roberts were judging a Clinton administration, they'd come to a different result. I do not believe this about Kennedy.

The harder issues are the ones they haven't gotten to yet. What is war, what's a combatant, what's duration, are there limits in an endless war: these are going to have to be applied in 200 factually different circumstances.

To my earlier comments, let me just add this. People may not understand it, but the fellow Rasul is named after was released, and so the case on remand after that 2004 Supreme Court decision was called Al Odah. The Supreme Court just decided a consolidated case consisting of Al Odah and Boumediene. That is, it's the same case -- filed in 2002, now twice at the Supreme Court.

Continuing in my not-a-lawyerness, I'll say that being in high school for United States v. Nixon perhaps set my template for how I expect lawyers in general and the Supremes in particular to view the rule of law. Eight to zip, guys, with Renquist actually *recusing* on the grounds of conflict of loyalty, how quaint.

Hi publius, hilzoy,

In response to hilzoy's question of To what extent the Constituion follows the flag, and to the following comment by publius:

Also, the D.C. Circuit’s decision was premised upon the (absurd) idea that Gitmo is foreign soil.

here’s another distinction that in deciding the virtue of The Court’s decision probably doesn’t make a difference: Yes, it is absurd to argue in any way that the detainees ought not to be afforded the right of habeas because United States does not exercise full control over that track of land, “Gitmo.”

After all, the Cuban government has been trying in vain for 50 years to evict the U.S..

But it is not absurd to regard the soil as Cuba’s.

Indeed, the Cubans regard our presence there as a dagger in the fatherland.

So let’s not accommodate the perception that Guantanamo is not foreign soil.

It’s the spoils of war, stolen property.

And returning it unconditionally is probably the least expensive chunk of moral authority we could buy back from the international community.

Doctor Science:

At this level of decision making, law is as much philosophy rather than a mechanical application of straight forward rules. The Supreme Court ends up articulating hopefully clear rules when the law is murky -- that is one of its core jobs. It does it by looking at the history of opinions concerning similar disputes, which is one kind of philosophy known as stare decisis, and also by articulating the policies of the law so as to find the sensible decision. For example, an underlying policy of habeas corpus is to prevent tyranny by the executive given the threat to liberty of arbitrary detentions. Stating that philosophy does not necessarily help in deciding specific cases, but in deciding whether to defer to the lower courts on the CSRTs or else decide the question now, the threat to liberty justified acting in a more hasty yet decisive manner. That is an example of a general policy helping to shape a specific decision.

The opinion is just a long exposition of these factors that the judge believes justify the decision. The viability of the decision over time depends on the persuasive force of its reasoning.

At the level of decision making of the Supreme Court, law and politics (politics in the sense of competing policy visions) becomes blurred. It normal for there to be stark differences on what should be done.

But I agree with Charley Carp that the dissenters in this case are deeply dishonest -- these are not hard cases, and instead represent a judicial willingness to subvert law to a political agenda. In the course of learning and practicing law, I have read literally thousands of decisions and engaged in appellate practice myself (have several published successful decisions in California). I am appalled by the crass polemics and dishonest posturing in the dissenting opinions.

"But I agree with Charley Carp that the dissenters in this case are deeply dishonest -- these are not hard cases, and instead represent a judicial willingness to subvert law to a political agenda."

I don't agree. I think these are hard cases. I don't believe that some of the majorities assumptions really hold up, but the reason I can't get worked up about it is because the only reason they are hard cases is that the President has made them hard. As I said before I can't imagine that the Court would be right if the detainee's had been held for one month or six under the circumstances surrounding 9/11, and certainly under a much more traditional war. But Bush has arranged to hold them for six years which is a whole 'nother entirely.

Isn't the more logical way to deal with truly exigent battlefield detentions to say, "yes, there's jurisdiction, but it is legal to detain people whom you consider security threats in active combat zones without trial for limited periods"? I mean, the language of the habeas statute is pretty straightforward, and it doesn't make much sense to me for a jurisdictional rule to be determined by the merits & facts of the detention. I realize that this is a break with precedent, but a lot of those precedents are incredibly sloppy about whether they are really deciding on jurisdictional grounds v. on the merits (and/or break down when the "enemy part" of "enemy alien" is precisely what's in dispute).

Sloppy punctuation; I meant the "enemy" part of "enemy alien."

Seb: as I read the case, the majority seemed to pay a lot of attention to those sorts of details. Not just when they said 'we wouldn't necessarily be hearing this if it hadn't been *six years already!*, but: taking into account whether habeas was not granted because there was another existing and developed legal system that people were trying not to interfere with unduly, whether the preceding process had been anything like adequate, etc.

I thought it was flexible in all the right ways, but put its foot down at the right points.

Scalia's alarm about this being the downfall of America, compared with the relatively muted reaction to the Taliban jailbreak at Sarposa prison in Kandahar, certainly is a contrast--especially if one remembers that there are still a few prisoners in GTMO who were sent there from Taliban custody in Sarposa. Granted, it's a Saturday in June....

I'm not sure what you mean, Sebastian, by circumstances surrounding 9/11.

Here, though, we're talking about, inter alia, people arrested in Pakistan by Pakistani police. After a stakeout. Or people kidnapped by the CIA from a Sarajevo courthouse, where they'd just been ordered released by a regularly constituted court for lack of evidence. This isn't battlefield stuff, and the protections of law have to attach immediately.

Actual battlefield situations are covered by the UCMJ and the Geneva Conventions -- which attach and apply from the moment of capture -- and if the government had complied with them, it would have been able to avoid all manner of trouble. Instead, it took these people somewhere with no natural advantages, where incarceration is quite expensive etc for the sole purpose of evading the rule of law. That too fails on day one.

The law will give you time to work things out in good faith, if you're acting in good faith.

Enemy alien is a term of art in the law, and means the citizen of a country with which we are at war. See Alien Enemy Act of 1798. 1 Stat. 577, 50 U.S.C. §§ 21-24. It's well established that an enemy alien facing deportation or other disability under that act can bring a habeas action challenging his status as an enemy alien. See Ludeke v. Watkins, 335 US 160, 165 n.8 (1948).

Really, if you make the base at Gitmo the legal equivalent of Key West, say, then the entire dissent collapses into bedwettery. The only issue in the case is whether you can get away from the Constitution by hiding in an offshore base that under our complete control, and no one elses. Take a look at the title of the Habeas Act of 1679 for the common law response to exactly this sort of bad faith.

I don't agree on the procedural issue.

In Hamdan you had an already filed case where the Court got around the Constitutional issue by interpreting the statute as applying only to already filed suits, but still the dicta of the majority and the caselaw history was pretty clear that their stance was that Congress COULD provide an adequate alternative to habeas as an option.

But the Court was talking about habeas here - and I think you are somewhat confusing that with concepts that apply to exhaustion of administrative remedies prior to seeking judicial relief.

The CSRT proceedings are a separate proceeding from habeas. So when you have someone like Boumediene who has had a pending habeas proceeding, then the question is can that proceeding be derailed by Congress providing an alternative proceeding, the revised CSRTs (which were not at issue in the pre or post MCA version in Hamdan).

And the Boumediene argument is that, 'no, you can not void my pending and valid habeas proceeding with a alternative mechanism provided by Congress that is, on its face, an inadequate alternative.

This is, btw, the point almost reached in Hamdan. Stevens pointed to certain approaches allowed for in the CSRT and MCAs and his opinion (which did not get 5 on that point, since Kennedy held back) provided some insight into what would NOT be allowed in an adequate alternative.

IIRC, Alito tried to make the argument you are making now vis a vis Hamdan, which was that everyone should just chill out and make Hamdan go through the DTA CSRT process and wait a few more years and see if these things that sure looked, on their face, to be outside any norms of due process and logic and justice were "actually" applied in such a manner. His argument there, though, fails for the same reasons as the procedural argument here fails.

Habeas has a free standing right to exist and be implemented UNLESS it is supplanted with an adquate on its face alternative. If the alternative is not adequate on its face, then it cannot supplant habeas and in a habeas petition the burden should be on the detainers to demonstrate that their alternative is adequate. They failed.

The burden is not on the habeas petitioner to go through an alternative process that is inadequate on its face and only then be able to bring his habeas petition.

Procedurally, I think what we have is the very same dynamic as from Hamdan (where the argument was also made, and bought by Alito, of just waiting to see what happened in a few more decades).

Kennedy et al focused on the right points, too, in the fact that where you have the Constitutionally protected judicial remedy of Habeas being taken away, the Congressional alternative - of having the Executive engage in self-review of its own determinations - implicates some substantial issues on review.

In that context (which may be what you are getting at in your 'real world' references but which I see as simple separation of powers and normative consideratoins) the adequacy of the alternative is judged in the context of the self interests at issue with self-review and the actual review powers which are statutorily blocked from court review.

But that's going wandering so I'll go back to the guts. Habeas has a right to exist as a judicial proceeding. To take habeas away requires the provision of an adequate alternative and when a habeas case is pending (in particular if already pending at the time the "adequate alternative" is promulgated by the Executive or Congress) then the burden is on the party seeking to stop a validly initiated habeas proceeding by interposing an alternative to demonstrate its adequacy. They failed, with the court determining that the alternative was inadequate on its face.

" As I said before I can't imagine that the Court would be right if the detainee's had been held for one month or six under the circumstances surrounding 9/11"

I think the Court would be right, even in the shorter detentions, with respect to GITMO (although possible not with respect to on location of detention - facilities if those were not being operated under torture/abuse rules)

GITMO involves a huge breach of the Geneva conventions with respect to the innocent sent there. Article 49 expressly prohibits (and the Conventions internally reference a breach of Article 49 as a severe breach) the shipment out of nation of protected persons. If someone had to be held for a month or so, at the place they were detained and without relentless abuse of the kind suffered by Dilawar before he died and his passenger/witnesses were sent to GITMO, then there was an actual procedure that was not, on its face, inadequate to allow someone to offer proof of protected persons status, before shipment (ok, lots of assumptions there, none of which apply in any of the Bush settings, be they Iraq, Afghanistan, Macedonia, Italy or elsewhere) then that would be one thing.

But to allow someone to be shipped from country prior to a valid determination on their protected persons status changes the dynamic completely. Especially when shipped in a manner equivalent to "disappearing" them. This really changes the equation for the reviewers who do ultimately make the review, because now, inherent in their finding that someone is a protected person, is the finding that the US military engaged in a war crime by sending them to GITMO.

I guess to make the procedural summary more summarizeds still - the adequacy of the alternative is jurisdictional.

mary - your 1:39 argument is the strongest I heard for why roberts' procedural argument is wrong (i.e., why the court should in fact reach this decision despite teh congressional statute eliminating this line of relief).

As noted above, the Army has regulations for dealing with captives, here in a long pdf. See pp 6-7.

Sebastian wrote:
I think these are hard cases. I don't believe that some of the majorities assumptions really hold up, but the reason I can't get worked up about it is because the only reason they are hard cases is that the President has made them hard.

As a lay person, I don't understand what you mean by "hard cases", here. From what the other lawyers are saying, it sounds like the only hard part is facing up to the fact that agents of the US government set up a whole system to evade the rule of law. Once you've admitted that fact, what's so hard? Or is "hard" a term of lawyerly art?

To be fair, DS, it is hard for people appointed by, or who appointed, GWB to admit that he and much of his crew are war criminals.

the only reason they are hard cases is that the President has made them hard

Sebastian,

Do you agree with CC's opinion that the cases would be almost trivial if the prisoners were being held in the US?

Good McClatchy article on Guantanamo today.

Thanks for that pointer, Katherine. The McClatchy article is the beginning of a series into which they've put a lot of effort:

the most extensive investigation to date of the treatment of detainees, not only at Guantanamo but also at Bagram and Kandahar in Afghanistan. Reporters Tom Lasseter and Matt Schofield tracked down and interviewed 66 former detainees -- more than any other organization, media or NGO, we think -- in 11 countries on three continents. They also interviewed former prison guards, interrogators, translators, Pentagon and administration officials, defense lawyers and Afghan intelligence and security officials to paint the most complete picture we could of who U.S. picked up, how and why, what happened to “suspected enemy combatants” and who’s responsible.

The package was overseen by the McClatchy Washington Bureau’s Pulitzer Prize-winning foreign editor, Roy Gutman, the editor of "Crimes of War" and the author of a new book on U.S. policy toward Afghanistan before 9/11. It includes five main stories, a video, photos, numerous sidebars, the stories of all 66 former detainees and an online database.

"As I said before I can't imagine that the Court would be right if the detainee's had been held for one month or six under the circumstances surrounding 9/11, and certainly under a much more traditional war. But Bush has arranged to hold them for six years which is a whole 'nother entirely."

I don't understand this. Admittedly the magnitude of the 9/11 attacks was unprecedented, and admittedly emotions ran high (and still do), but what precisely are the actual objective reasons to believe that the traditional legal courses of action are ineffective? They worked just fine in the case of the Oklahoma bombers, and in prosecuting the conspirators behind the (failed from the criminal point of view) 1993 world trade center bombings. See for eg:

http://en.wikipedia.org/wiki/1993_World_Trade_Center_bombing

How is 9/11 different in terms of prosecuting the conspirators, (admittedly here the conspiracy was successful unlike the 1993 attempt)? If you believe that the circumstances around 9/11 permitted extraordinary and new legal measures, the onus is on you (the Govt) to prove it, and I think they have clearly failed.

Secondly, it is a convenient term to state that there is a war against terrorism currently underway, because it a) makes many people feel good , and b) provides the executive a reason to increase its powers, which as is natural to such an organization, it has seized. However, what is to prevent the executive from making an identical argument to prosecute people it suspects of smuggling drugs from one of the big cartels? After all there is a *War* on drugs too.

It also seems to me that both the executive and to some extent Congress want to have it both ways. First the argument goes that we are at war, and people "captured" in this war are enemy combatants and consequently do not have access to standard judicial recourse, the most fundamental of which is the writ of habeas corpus. However, at the same time, the govt argues that this is not a real war, and the so called enemy combatants don't have to be treated according to the UCMJ and the binding Geneva conventions. Taken together these two amount to the claim that Govt. has a right to do with these detainees as it pleases and is not answerable to any authority. What else is this but an argument for absolute untrammelled powers of the executive? And what is so hard about this case and judgement that essentially states that Govt. cannot make such a claim, and that said detainees have recourse to the most basic of rights, the writ of habeas corpus? I think the four justices in the minority are truly despicable and dishonest on this matter.

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